Imagine living in the United States before electricity was invented, let alone a computer. At the time, it was quite possible that only a few hundred people lived in any given town. When a crime was committed or a civil dispute went to court, chances were good everyone in the town knew about it and everyone was talking about it. With only a handful of lawyers around, defense attorneys, plaintiffs attorneys and prosecutors might have known intimate details about the judge, jury members and those directly involved in the case.Yes, the jurors, prospective and selected, knew everything about the case. In this environment, how could anyone possibly get a fair trial? Believe it or not, fair trials were possible. They happened all the time.
So, when I hear members of the legal profession lament the fact that social media and the Internet are making jury trials impossible, I have to respond with one of my favorite expressions: “Meh.” Courts have been dealing with many of the challenges at the forefront of the social media debate for centuries. These include determining how to make sure jurors aren’t prejudiced by outside information and how much litigators can learn about jury members prior to voir dire. These aren’t new questions or challenges. They’re just being brought into sharper focus.
I propose that while the tools are new, the strategies trial lawyers should use when dealing with the challenges social media presents are old.
New Tools, Same Due Diligence
There’s no doubt that social media has made it easier for litigators to get personal information about jurors. Call it voir dire 2.0 if you want, but the idea of investigating jurors using information from outside of the courtroom is not new. In almost all jurisdictions, the court will release a list of potential jurors at some point before the trial begins. It might be a day; it might be a few weeks. Attorneys have always used this basic identifying information to find out more – where do they live, where do they work, what’s their age. In fact, they wouldn’t be doing their job if they didn’t take this extra step.
In the past, trial lawyers used public records, private investigators and drove by the houses of potential jurors to find out anything that might be helpful in making the right juror choice. Now, we have additional tools, in the form of social media. Currently, there is no national guidance on using publicly available information from the Internet or social media profiles. But individual courts have stated that it’s fair game. In fact, both the New York City Bar Association’s committee on ethics and the Missouri Supreme Court have put forth opinions suggesting that not looking for online information about jurors could be an abdication of an attorney’s professional duty. The point is attorneys should continue doing what they did before – find out as much as they ethically can, that is, without communicating with the jurors, directly or indirectly, about jurors to select the jurors most likely to rule in their client’s favor.
New Distractions, Same Jury Guidelines
At the beginning of every trial, jurors are given specific instructions on how they must conduct themselves during the proceeding. Every litigator who has worked a jury trial has heard these instructions before. They include some variation of the following: “You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom.” This instruction seems fairly straightforward; no watching the news, no checking the Internet and no talking to your buddy about the case. Experienced litigators know that unless the jury is sequestered – which is rare — there’s a decent chance a juror or two will violate this instruction in some way. Social media adds one more place where jurors may intentionally or unintentionally see information. Unfortunately, this juror misconduct can be very difficult to prove.
Knowing that the jurors may, or perhaps are likely to, conduct independent research on the issues presented in the case, deal with it. Just as the lawyers in the village had to deal with the fact that the jurors knew what the scene of the accident looked like and the temper of the litigants outside the courthouse, trial lawyers today have to assume that some jurors may have outside knowledge of the case. Then they can structure their arguments to address some of these outside perspectives. While they can’t bring up the issue directly, they can present permissible evidence that may address widely discussed issues. Trial lawyers now must monitor more sources of information, but the way that they deal with the information in court is the same.
If you’re dealing with a pharmaceutical product alleged to cause adverse effects, deal with the reality that the media has published reports of adverse effects but that such reports may be false.
New Pitfalls, Same Rules
It’s against the rules for attorneys on either side of a case to make direct contact with jurors outside of the courtroom. Violating this rule could lead to a mistrial and to sanctions imposed on the lawyer involved. That means no Facebook wall posts, no retweets and no messages between attorneys and jurors.
With social media, what constitutes contact is not always clear. The three most popular social networking sites are LinkedIn, Facebook and Twitter. While jurors may have publicly available profiles on any of these sites, LinkedIn allows certain users to see which people have viewed their profile in the last 30 days. If during research, an attorney views a potential juror’s page and the juror is notified, some courts have ruled it constitutes contact and a mistrial is declared. So, while the rules haven’t changed, attorneys must be careful and have a clear understanding of the new technologies they are using.
In all aspects of modern-day life, people like to point out how social media and the Internet have changed the way we live. It’s impossible to deny. But as the old saying goes, “the more things change, the more they stay the same.” That can be applied to the way these technological advances have affected jury trials. Whether it’s conversation on Twitter or conversation in the town square, the courts have always managed to deal with it. Just because jury trials are harder to manage doesn’t mean they can’t be managed. Even as technology continues to evolve, tried and true strategies and techniques are still a litigator’s best friend. Is social media causing a revolution in jury trials? I say, “Meh.”
Howard D. Scher a shareholder at Buchanan Ingersoll & Rooney’s Philadelphia and New York offices. With experience acquired in more than 30 years as a litigator, Scher focuses on complex litigation for business clients and the efficient resolution of disputes to avoid prolonged and costly litigation. He was inducted as a fellow of the American College of Trial Lawyers in 1995 and the International Academy of Trial Lawyers in 1999. Scher can be reached via email at email@example.com or by phone at 215-665-3920.